A war on Judicial Review? [updated]

The Prime Minister is to “get a grip” on people forcing unnecessary delays to Government policy by cracking down on the “massive growth industry” of Judicial Review. David Cameron told business leaders today:

“When this country was at war in the 40s, Whitehall underwent a revolution. … everything was thrown at ‘the overriding purpose’ of beating Hitler. … this country is in the economic equivalent of war today – and we need the same spirit. We need to forget about crossing every ‘t’ and dotting every ‘i’ – and we need to throw everything we’ve got at winning in this global race.”

The detail of the changes is yet to be revealed (update – more detail is now available on the Ministry of Justice website, including the promise of a public consultation), but the PM plans to ” reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting.”

Clearly some of the PM’s Dunkirk spirit rhetoric is aimed at cheering up business leaders, who need a lot of that at the moment. But putting the rhetoric aside, there is cause for concern here.

First, the underlying assumption is that Judicial Review, the right to challenge decisions of public authorities in court within three months of them being made, has grown out of control since the 1970s.

Has any proper analysis been done? There are reasons for the growth in Judicial Review which are unconnected to the rapaciousness of lawyers and unnecessary bureaucracy, such as the growth of the state, the decrease in trust of politicians, and the passing (by Parliament) of the Human Rights Act. There is also the more general point that Judicial Review is actually quite a good way of guaranteeing that decisions of public authorities are reasonable and fair – this might explain its popularity.

Perhaps most importantly, a huge proportion of that increase is due to immigration decisions being challenged, not planning or other business-related decisions (see this graphic).

Anyone who works in administrative law, as the practice of Judicial Review is known, has seen really poor decisions, which had been upheld by internal public authority appeals processes (such as they exist), eviscerated by judges. The mere threat of judicial oversight can lead to irrational decisions being made again – for example, in the recent fuss over the West coast rail franchise.

Secondly, there are a some worrying statements which are said to underly the changes. For example, the original BBC story (screen grab here) said Downing Street figures showed “Around one in six [judicial review] applications was granted”. Following a little fact checking on Twitter, that has now been removed. Whilst it is right that permission to proceed (the first stage) is granted in around 6.5% of Judicial Review applications, only around 1% actually succeed at the substantive stage, that is win overall – see p.65 of the statistics for 2011. Which statistics are being used to justify this decision in Whitehall?

Of course, Government and business leaders have every right to worry if the courts are being slow, inefficient or overly-bureaucratic in holding up the decisions of public authorities. The three-month time limit to bring a Judicial Review is much shorter than in most other litigation settings. This is in recognition of the fact that public authorities need to be able to get on with making decisions and not be unduly delayed by unmeritorious court claims.

But it seems that the real problem here is court delays, not the judicial review system itself. At least, that is the thrust of the Prime Minister’s comments. From my experience, it sometimes takes around a year for a full judicial review to be heard, which makes a mockery of the initial three-month time limit – but judicial reviews of more urgent decisions tend to take a matter of weeks. Of course one of the best ways to tackle court delays would be to increase funding to the justice system. But that is unlikely to happen given the very significant cuts to the Ministry of Justice’s budget.

Unless the system can be made more efficient – for example, by further cutting the number of claims which are dealt with by High Court Judges – the only other option is to limit the rights of individuals to challenge Government decisions. And there may be problems there for the rule of law.

Thirdly, will the entire Judicial Review system be affected or just the part of it which concerns the kinds of decisions which affect business? The vast majority of Judicial Review applications are about immigration and asylum, not planning or business, so this is a very important question indeed. Whilst increasing the speed of planning challenges could (at a stretch – see below) be justified by the ‘wartime’ analogy, that logic is becomes more strained when it comes to immigration decisions.

Finally, it may be rhetoric, but this is the second time in a week that the Prime Minister has expressed frustration at having to cross his ‘t’s’ and ‘i’s’. He said in relation to Abu Qatada, who has avoided deportation to Jordan:

We have moved heaven and earth to try and comply with every single dot and comma of every single convention to get him out of this country.

Lawyers will be very concerned indeed about this.The wartime analogy is also somewhat depressing. During wartime, the state becomes more authoritarian as it is focussed on a single existential threat. Niceties of rights protection and civil liberties tend to be suspended. Nobody could seriously want this to apply because we are facing the real but certainly not existential threat of a recession.

Since the Prime Minister is invoking the Second World War, it seems appropriate to invoke perhaps the most famous dissenting judgment in our legal history, that of Lord Atkin in Liversidge v Anderson[1941] UKHL 1. He said:

In this country amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law

Judges have become quite good at making sure, on behalf of individuals, that the Government dots its ‘i’s’ and crosses its ‘t’s’. Any significant change to that system must be supported by evidence that it really isn’t working and that the proposals will really address its deficiencies. Anything less risks making public authorities less accountable to the public they serve. To paraphrase Lord Atkin, we should think very carefully indeed before silencing the law.

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Given that one of the pillars of the Aarhus Convention concerns access to justice in environmental matters, and given that Aarhus Compliance Committee has questioned whether the option of JR is sufficient to meet the UK’s obligations under the Convention, it is unlikely that the Committee would look at all kindly on any diminution.

It would seem that the PM is determined to prevent any opposition to his will being imposed on the nation. His idea seems to be if you cannot silence the critics, just remove their ability to act.
I half expect that the next stage will be to declare a state of National emergency, and suspend all parliamentary elections.
Does anybody recall voting for a dictator?

Godwin’s Law has been used as an indicator of whether a thread has gone on too long, who’s playing fair and who’s just slinging mud and who finally gets to “win” the discussion. He wants to be power of the people…time for him to go!
Vote UKIP

Any significant change to that system must be supported by evidence that it really isn’t working and that the proposals will really address its deficiencies. Anything less risks making public authorities less accountable to the public they serve.

JR’s are not all they are cracked up to be anyway – they are only a discretional review. “The Court of review cannot substitute its own decision on the merits of the case for that of the decision making authority” as per Keenan v UK para [73] and also Cubells v the IPCC (our Family case) as per Para [21] below:

“It is common ground that the court’s power in respect of this claim is one of review only”

Keenan v UK [ECHR] Para [73] further emphasises the limitations of the Judicial Review process in respect of an effective public remedy (Article 13 -ECHR) thus:

“However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority”

Granted JR’s are appropriate in some cases, however they are clearly not appropriate in many cases. Cameron should be expanding the remit of JR as opposed to reducing it.

Is this a response to the (arguable) abuse of the JR process during the Dale Farm clearance proceedings – in which all individual cases were the subject of an individual JR application, rather than one collective application being made on their behalf ……???

This is just to add to the many excellent posts regarding proposals to reform judicial review. Just for those who are unaware of what judicial review is, Mr Justice Simon Brown in R v HM the Queen in Council, ex parte Vijayatunga [1988] QB 322 succinctly noted that ‘judicial review is the exercise of the court’s inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law.’ The Government would do well to remember this when considering changes or reforms on access to the courts.

As the Ministry of Justice website notes, ‘[c]ostly and spurious review cases which clog up the courts, delay justice and place a heavy burden on the tax-payer.’ This is said without making reference to any monetary figure or any examples of ‘spurious review,’ of course, indeed there may well be unsavoury claims, but this is not limited to judicial review. There is no indication on how money may actually be wasted and no prediction regarding savings these proposals might achieve. What these proposal reforms fail to acknowledge is what Mrs Justice Lang in Saha v Imperial College of Science, Technology and Medicine [2011] EWHC 3286 (QB) at 28 noted that ‘[i]t is a well-established principle that judicial review is a remedy of last resort and, therefore, the Administrative Court is entitled, in its discretion, to refuse permission where a [claimant] has not exhausted his alternative remedy…’ Such emphasis can be seen in cases such as R v Peterkin, ex p Soni [1972] Imm Ar 253, R v Hillingdon LBC, ex p Royco Homes Ltd [1974] QB 720, Scott v National Trust for Places of Historic Interest or Natural Beauty[1998] 2 ALL ER 705. But this stance is not absolute noted in R v Chief Constable of Merseyside Police, ex p Calveley [1986] 1 QB 424 and R v Leeds City Council, ex p Henry (1994) 6 Admin LR 439.

Just recently in relation to ‘spurious review’ in Hamid, R (on the application of) v Secretary of State for the Home Department[2012] EWHC 3070 (Admin) the President of the Queen’s Bench Division at para 10-11 robustly stated that:

These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.

That is a warning for the future. We hope it will be unnecessary to have to have any further hearings of this kind or to refer anyone to the Solicitors Regulation Authority, but we will not hesitate to do so where there is a failure to comply with the court’s requirements.

And in relation to delays his Lordship quite rightly stated that at para 8 that ‘if reasons are not properly set out or do not explain why there has been delay or the reasons are otherwise inadequate, the court may simply refuse to consider the application for that reason and that reason alone.’

Mr Grayling argues that ‘…there has been a huge growth in the use of judicial review, far beyond what was originally intended.’ Just what exactly was intended when judicial review was in its infancy? The expansion of judicial review is a direct result of increasing state interference. Where Leyland et al 2008 at p 213 summarises the emergence of judicial review as ‘after WWII the government became increasingly invasive in areas which it had not previously done so, thus increasing in size and responsibility thus major modifications were made to the tribunal system as a result of the Franks Report 1957 and the Tribunals and Inquiries Act 1958. Such pressures led to the Parliamentary Commissioner for Administration in 1967, such instances were maintained by landmark decisions of the HL which brought about the basis for the body of judicial review.’

‘Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench…’

All this would suggest is that the judiciary are reactive (perhaps sometimes proactive) to when the government finds new ways to govern individuals under its jurisdiction.

In relation to reducing time limits, the Civil Procedure Rules 54.5 notes:
(1)The claim form must be filed –
(a)promptly; and
(b)in any event not later than 3 months after the grounds to make the claim first arose.
(2)The time limit in this rule may not be extended by agreement between the parties.
(3)This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.

In regards to ‘promptly’ the Senior Courts Act 1981 s.31(6)(a) the court may refuse to grant leave or remedy s.31(6)(b) if there has been ‘undue delay in making an application for judicial review.’ Therefore, the applicant should make a claim as soon as reasonably possible and there may be consequences for not doing so. Lord Steyn in R (Burkett) v Hammersmith and Fulham LBC[2002] 1 WLR 1593 (HL) at para 53 said as much that ‘in regard to truly urgent cases the court would in any event in its ultimate discretion or under section 31(6) of the 1981 Act be able to refuse relief where it is appropriate to do so.’

The courts may extend the time period according to the Senior Courts Act 1981 s.31(6) if it ‘would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.’ As seen in R v Sec of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386 an action was allowed nearly 3 years after the initial decision because the importance of the issue and because some relevant evidence emerged only at a late stage.

What is also essentially important and should not be overlooked is what was asserted in Craig, Administrative Law 4th ed at p 794 was that:

‘The short time limits may, in a paradoxical sense, increase the amount of litigation against the administration. An individual who believes that the public body has acted ultra vires now has the strongest incentive to seek a judicial resolution of the matter immediately, as opposed to attempting a negotiated solution, quite simply because if the individual forbears from suing he or she may be deemed not to have applied promptly or within the three month time limit.’

Shortening the time limit for judicial review may have the unintended consequence of defeating the idea that the court is a last resort and may render other accessible remedies redundant. Where there is haste, there may also be waste, with the aim of creating more cost effective procedures these reforms could actually hinder justice by way of rushed and defective decisions which in turn would actually create further delays. A more cost effective judicial process is good, but an efficient judicial process is better.

In R v Lord Chancellor, ex p Witham[1998] QB 575 the Lord Chancellor sought to change policy that excepted those on income support from paying court fees, this changed was contained in the Supreme Court Fees (Amendment) Order 1996 on the basis of s.130 of the Supreme Court Act 1981 – which gave the Lord Chancellor general powers to prescribe fees. Laws LJ noted this was ultra vires as:

’Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect by express provision – permits the executive to turn people away from the court door. That has not been done in this case.’

Laws LJ quite rightly states that access to the courts is a constitutional right, but what is worrying about this sentiment is that it implies that Parliament can waiver them. This could obviously add to the constitutional tangle between the judiciary and Parliament. But realistically, this would seemingly not succeed considering that previous governments have failed to restrict the court’s jurisdiction with the dubious ouster clauses. In R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574 The claimant wanted to challenge the amount of compensation he received for a work related injury from the Medical Appeal Tribunal via quashing order (certiorari). The court held that such a clause prevented an on fact or law, it did not prevent judicial review (Leyland et al 2008 p 394 and Webley 2009 OUP). Denning added ’…the courts never allowed those statutes to be used as a cover for wrongdoing by tribunals. If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.’ This is also illustrated by older cases such as R v Cheltenham Commissioners [1841] 1 QB 467. where Lord Denham CJ said ‘The statute cannot affect our right and duty to see justice executed.’

But cases such as the ones above were in relation to curbing the courts own jurisdiction. The government has and successfully used what is termed a ‘time clause’ (which could also be argued to curb the court’s jurisdiction) which may for all due purposes have the same effect as reducing the time limit to bring a claim for judicial review. And this is where the danger might lay for access to justice for the courts are reluctant ignore. This is seen in Smith v East Elloe Rural District Council [1956] AC 736 which concerned a challenge to a compulsory purchase order under the Acquisition of Land (Authorisation Procedure) Act 1946, Sch 1 Part IV. The Act allowed the court to quash acts of ultra vires as long as there was substantial prejudice to the applicant, however the statute noted that any challenge must be made within a six week period of the order being made if not the compulsory purchase order ‘shall not be questioned by any legal proceedings whatsoever.’ It was not until 5 years after the fact that Mrs Smith made a claim. The Lordships concluded they could not quash the order, but unanimously held that Mrs Smith’s claim could proceed on grounds of bad faith. But even in this case Lord Radcliffe described the six week time limit as ‘pitifully inadequate.’ Dissenting Lord Somervell believed that the ‘limited right under paragraph 15, therefore, does not apply to applications based on bad faith.’

But the strength of time clauses have subsequently been approved in R v Secretary of State for the Environment, ex p Ostler [1976] 3 AII ER 90, R v Secretary of State for the Environment, ex p Kent [1990] COD 78, and in R v Cornwall County Council, ex p Huntington [1994] 1 All ER 694 Mann LJ stated that:

‘The intention of Parliament when it uses an Anisminic clause is that question as to validity are not excluded…[W]hen paragraphs such as those considered in ex p Ostler, ex p are used, then legislative intention is that questions as to invalidity may be raised on the specified grounds in the prescribed time and in the prescribed manner, but otherwise the jurisdiction of the court is excluded in the interests of certainty.’

But as Lord Atkin’s stated in at 361 Ras Behari Lal v King-Emperor (1933) 60 IA 345 that ’[f]inality is a good thing, but justice is a better.’ R v Wiltshire County Council, ex parte Nettlecombe Limited [1998] JPL 707 has however been distinguished from Huntington.

Wade and Forsyth (2000, p 712) have suggested that clauses of this kind may invoke Article 6 arguments as they may impede on the granting of a judicial remedy.

This may have an unintended consequence for the government, if the courts are reluctant to ignore a time clause, they may be forced to issue a sec.4 HRA 1998 declaration of incompatibility. In Hobbs v UK [2002] App. No 63684/00 the ECtHR held that a declaration of incompatibility is not a sufficiently effective remedy for the purposes of the Convention and in Burden v UK[2006] Application No 13378/05 the ECtHR confirmed that applicants who’s only remedy is a declaration of incompatibility may not be required to make a claim in national courts and in 2008 the Grand Chamber ruled that declarations are still ineffective and only improvements would make the Court reconsider. This may result in applications going straight to Strasbourg to challenge time limits. Would the government then argue more about the interference by the ECtHR?

Challenges have come before the ECtHR before as in the case of Stubbings and Others v UK36-37/1995/542-543/628-629 although the applicants Article 6 claim failed, the court notably stated at para 50:

‘In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.’

One could only speculate at such a situation occurring. But this line of thinking makes clear, that time limitations must be carefully considered, and legitimately proportionate if such proposals were to ever go forward.

The Court albeit on Article 3 grounds in Jabari v TurkeyAppl. No. 40035/98 held that:[the] automatic and mechanical application of a short [five day] time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention.

As Wade et al might suggest that a time clause may hinder an effective remedy, a two judge led dissent from Strasbourg in the case of Vilvarajah and Others v. The United Kingdom45/1990/236/302-306 argued that judicial review itself is not an effective remedy:
‘PARTLY DISSENTING OPINION OF JUDGE WALSH JOINED BY JUDGE RUSSO:
3. It appears to me that a national system which it is claimed provides an effective remedy for a breach of the Convention and which excludes the competence to make a decision on the merits cannot meet the requirements of Article 13 (art. 13).’

What also needs to be remembered about any Article 6 challenge is that it is only engaged ‘[i]n the determination of his civil rights and obligations…’ As shown by Christopher Hood and Ruth Dixon (Item 7) the majority of JR applications are regarding immigration, it is assumed this includes asylum issues also, but therein lies the danger or trying to invoke an Article 6 argument on a time clause as in the case of Vilvarajah at para 102 (mentioned above) the Court held ‘that the right to political asylum is not contained in either the Convention or its Protocols. This is borne out by several recommendations of the Assembly of the Council of Europe on the right of asylum.’ Which has been confirmed by the Council of Europe at p 9 nor is it even guaranteed by the Refugee Convention (Article 1(2). And in T v Secretary of State for the Home Department [1996] AC 742, 754, Lord Mustill said:

‘…although it is easy to assume that the appellant invokes a ‘right of asylum’, no such right exists. Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries.’

The Council of Europe at p 38 have also noted that ‘…Article 6 does not apply to expulsion cases. This is because the right to protection from expulsion is seen not as a civil right but as an act of public authorities governed by public law.’

‘Sacrificing key procedural safeguards and/or setting short time limits for the examination may result in flawed decisions which will defeat the objective of an efficient asylum procedure, as they may prolong proceedings before the appeal instance.’

It appears that Mr Grayling has not thought about this idea of reforming judicial review thoroughly, because the very purpose of reform, is to better something, but in order to do that, one has to look at existing weaknesses, there is no mention of how the Civil Procedure Rules or anything for that matter might be failing or how it could be improved, or even why it might be failing. This is not to argue that judicial review is faultless, but in order to make change, inadequacies must be identified and evidenced and then any necessary proposals which have considered the potential implications and consequences made thereinafter.

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